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The Ontario Court of Appeal has reserved decision on an appeal of a decision ordering the Durham Regional Police Service to expunge a withdrawn assault charge entry from a woman’s record and not reveal it to prospective employers, says Toronto criminal lawyer David Rose.
The Superior Court decision was an important precedent that if upheld could affect thousands applying for positions working with children or other vulnerable persons, says Rose, who represents the Ontario Civil Liberties Association, an intervenor in J.N. v. The Durham Regional Police Service and the Durham Regional Police Services Board.
“Every year, thousands of Canadians have assault charges withdrawn, many because there was nothing to the charges in the first place. They should have a meaningful process to have their records expunged so that there is no disclosure of the withdrawn charge to prospective employers and interested parties where there is no reason for such a disclosure,” says Rose, a partner with Neuberger Rose LLP. “Interestingly, if someone pleads guilty to an assault charge and gets a discharge from the court, they have more protection as regards disclosure of the charge than persons who have the charge withdrawn by the Crown.”
The case involves a woman, J.N., who was charged with assault arising from a family dispute. The Crown withdrew the charge, and in fact, Justice John P.L. McDermott wrote in his decision that the “charge apparently had no merit.”
J.N. applied for a job with the Durham Catholic District School Board and her application, as often happens with many positions where children or other vulnerable persons are involved, required the submission of a criminal information request. When her CIR was returned, it included a reference to the withdrawn assault charge.
“Her efforts to have the police expunge the fact of the record of the withdrawal and the fact she was charged went nowhere for no good reason,” says Rose.
Rose notes that “what happened to J.N. was Kafkaesque. She was caught in the middle of a family dispute, and charged with assault. After the Crown looked at the file closely they withdrew the charge, as they should have. From there she got a run-around from the Durham Police in her efforts to have the record of her experience expunged. But this happens all the time.”
Rose says that, “people often assume because they went through the process and the charges were withdrawn it’s the end of it and what this case shows is it has not been the end of it.”
The lower court found the police decision to refuse to remove the withdrawn charges was “unreasonable,” and ordered it quashed. The judge further ordered J.N.’s CIR and all future CIR’s be issued without reference to the withdrawn charge of assault.